8 July 2016 by

D.I.Y. L.P.A. – What can go wrong if you don’t use a solicitor?

The Office of the Public Guardian (OPG), which seeks to protect people who do not have the mental capacity to make decisions for themselves, has recently set up its own online Lasting Power of Attorney (LPA) service. In a recent publication issued by the OPG, it has stated that you do not need a solicitor to create an LPA. However, given the importance of LPAs and the serious consequences if you get it wrong, we would still recommend taking legal advice for the following reasons:

  1. If you do not follow the Court’s instructions precisely, on the creation of an LPA, the OPG will not register your LPA. This may mean you would need to resubmit your application and pay the £110.00 registration fee again. If you instruct solicitors to deal with your LPA, they will be used to the process and can ensure that the OPG’s instructions are followed correctly.
  2. The OPG does not check if the names, addresses or dates of birth on your LPA application are correct. We have been told by the OPG that it assumes the donor under the LPA has checked the information and that is why he/she has signed the LPA forms. This means that, although an LPA may be registered, it may not be valid. In practice, relevant third parties, such as banks and hospitals, require not only certified copies of LPAs but also proof of the attorney’s identity. If an attorney’s details on his/her passport (for example) differ to what is set out in the LPA, then banks, hospitals and other third parties are unlikely to follow any instructions given by that attorney. This could result in your wishes under your LPA not being followed, which could then have serious implications if, for example, you need medical treatment or funds to be released by a bank. If you instruct a solicitor to prepare your LPA, he/she will carefully check the supporting documents before the forms are sent to the OPG.
  3. Last, but not least, the OPG’s online tool for creating and registering LPAs cannot prove who set up the LPA. There is a risk that someone seeking to take advantage of another person, who lacks mental capacity, could complete the online LPA form, print it off and ask that person to sign it. If you instruct solicitors, they can act as your ‘certificate provider’ and confirm that you have the mental capacity to set up your LPA. We believe this significantly reduces the risk of attorneys abusing their powers.

Getting legal advice, when you create an LPA, will be more expensive than using the OPG’s online service. However, by instructing solicitors, you will have the peace of mind that you have created a valid and enforceable LPA that avoids problems in the future.

If you have any queries about LPAs, including if you would like to set one up, please contact one of our solicitors in the Wealth and Estate Planning team here.

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